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Law of the jungle in post-Gadhafi Libya

International Criminal Court lawyer being held by militia.

Melinda Taylor (- / AFP)

By Eric Morse

Mon., June 25, 2012

Fresh from last month’s triumph in getting a war crimes conviction against deposed Liberian president Charles Taylor, the international criminal justice system now has its hand caught in a bear trap in Libya. On June 9, Melinda Taylor, an Australian senior lawyer for the International Criminal Court in The Hague and three of her colleagues were detained in Zintan, west of Tripoli, by Libyan “authorities” on charges of “espionage.” The claim is that she was “carrying suspicious documents” for Moammar Gadhafi’s captured son Saif al-Islam. According to Reuters, the “authorities” elaborated that “the lawyer had a letter written in English that they wanted him to sign admitting that there is no law in Libya and asking to be transferred to the ICC.”

Things became clearer June 11 when those holding her said she would be released if she led them to a key former regime figure linked to Saif al-Islam. Taylor is alleged to have had this individual’s GPS co-ordinates on her.

The ICC group was not detained by “Libyan authorities.” They are being held by the Zintan militia, one of the most heavily armed and independent formations in the country, whose relations with the internationally recognized National Transitional Council in Tripoli are (at best) strained. In fact, the NTC’s control even in Tripoli itself is actively contested. But most of the players in Libya agree that they want to deal with the Gadhafis themselves, and not turn them over to international justice. The Rome-based Australian ambassador to Tripoli has come and gone empty-handed.

The affair underscores that post-Gadhafi Libya is a chaotic place with no effective government, and that ICC officials with the temerity to go there are under threat. That is something new and very dangerous.

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The detainees also appear to be victims of infighting within the ICC itself. Taylor’s ex-colleague Seth Engel has said in a Huffington Post piece that her group was actually there as representatives of the ICC Office of Public Counsel for Defence (OPCD — the defence lawyers in any eventual trial), and that they were caught offside in a spat with former chief prosecutor Luis Moreno Ocampo, who took the very odd position that the Libyans are entitled to try Gadhafi junior at home.

Yet Taylor’s group was in Zintan to prepare for Saif Gadhafi’s eventual defence, which raises the fundamental question: What on earth were they thinking of? The other question would be, who let them go there under those conditions — the likely answer is that one silo of the court does not answer to another.

Moreno Ocampo, who retired on June 15, was known for international grandstanding. He was also not known for backing down on ICC claims of right to prosecute. In early May, the OPCD accused Moreno Ocampo of having biased the case against Gadhafi by declaring that Saif al-Islam was guilty; the OPCD demanded Moreno Ocampo’s removal from the file. Moreno Ocampo had also hinted he had struck a deal with Tripoli to let Gadhafi be tried in Libya — while also asserting that no side in Libya is immune from war crimes investigation, quite rightly given the atrocities that we know have been going on in the country.

It’s one thing to assert the supremacy of the court. It’s quite another to be so ignorant of the situation on the ground — or so breathtakingly arrogant — as to send four civilians into what are effectively ungoverned lands and expect that nothing will happen.

Engel calls what is going on in Zintan “summary justice,” but it’s more than that. It’s a demonstration of complete breakdown of order in Libya — hardly surprising after Moammar Gadhafi’s fall. The outcome in Libya post-Gadhafi is not much different from the outcome in Iraq post-Saddam, with the exception that this time the West managed to keep its boots off the ground.

None of which is of any help to Taylor, or to the credibility of international justice.

Eric Morse is a former Canadian diplomat, now vice-chair of security studies at the Royal Canadian Military Institute in Toronto.

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